so, pete, what happened was basically the white house didn't view the senate as in recess though republicans were doing the same gig. >> reporter: the question here legally, is the senate in recess. the obama administration says, no. the sessions are a sham. they last less than a minute. the congress or the senate when it decided to do this passed an order saying that no business would be conducted during these pro forma sessions. what are more do you need? the senate says we'll decide whether we're in recess or not and we say we're not, and not only that in the early part of the recess from december of last year to january of this year, the senate actually passed an extension to the payroll tax cut. so is the senate in recess or not? and this is it either going to go to the supreme court, chuck, or the courts are going to say, you know what, we can't -- this is a dispute between the political branches. you guys work it out. i don't think it's 100% clear whether the courts will decide they can decide this question. >> that seems odd. i want to throw up a graphic. obama has actually done fewe